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Friday, March 6, 2015

Chevron is desperately trying to hide from public view a new forensic report that appears to definitively prove what we have been saying for months: the company's fake narrative that it was the "victim" of the courts in its chosen forum of Ecuador is a house of cards that is fast collapsing.

Chevron's latest problem comes courtesy of a fascinating story by Courthouse News that for the first time discloses key details of a forensic analysis of the computer of the Ecuador trial judge who found the oil giant liable for deliberately dumping billions of gallons of oil waste into the rainforest when it operated in the South American nation from 1964 to 1992. The analysis was conducted by noted American forensic expert J. Chrisopher Racich at the request of Chevron in a related closed-door arbitration between the oil company and Ecuador's government.

According to confidential filings in that arbitration obtained by Courthouse News, the Racich report concludes that Ecuadorian trial judge Nicolas Zambrano painstakingly wrote the 188-page decision over a period of several months. Zambrano's ruling, since affirmed by no fewer than eight separate appellate judges in Ecuador, also found that Chevron abandoned hundreds of open-air waste pits gouged out of the jungle floor that continue to contaminate soils and groundwater.

(Evidence also demonstrates that Chevron's dumping decimated indigenous groups and caused cancer rates to skyrocket. For stories of the people Chevron poisoned, see this photo essay by award-winning journalist Lou Demettais. For the view of the only U.S. Congressman to visit Chevron's disaster zone in Ecuador, see here.)

Zambrano also ordered Chevron to pay $9.5 billion for clean-up costs -- a relatively modest sum compared to the $30 billion paid by BP for the much smaller and less impactful Gulf of Mexico spill. To evade paying the Ecuador judgment, Chevron is now mocking courts by engaging in a jurisdictional shell game around the world.

Chevron naturally is doing its best to ensure the full Racich report never sees the light of day. That's because the report debunks Chevron's primary defense that the Ecuador judgment was not written by Zambrano. Chevron's "evidence" in this regard is false testimony from a crooked former Ecuadorian judge named Alberto Guerra to whom the company paid huge sums of money, apparently in violation of federal law that bars payments to fact witnesses. (For background on how Chevron appears to have bribed Guerra to testify falsely, see here.)

It is clear that the Racich analysis can be used by the villagers to shoot down Chevron's weakening defenses in courts in Canada and Brazil that are hearing actions to seize company assets to force compliance with the Ecuador judgment. Chevron's lawyers also have been noticeably silent in the the face of a letter sent weeks ago from New York attorney Steven Donziger (the longtime legal advisor to the Ecuadorian villagers) demanding full disclosure of the Racich report.

After being paid roughly $2 million in benefits -- including tens of thousands of dollars in cash out of a suitcase -- Guerra claimed with no corroborating evidence that he helped ghostwrite the judgment with lawyers for the plaintiffs. It turned out that he had rehearsed his testimony for 53 days with the help of Chevron's lawyers before presenting it in open court in the company's retaliatory civil "racketeering" case in U.S. federal court, where he was promptly shredded on cross-examination. (For background on Chevron's shenanigans in that case, see here.)

The Courthouse News story quotes a confidential legal brief submitted in a related arbitration that the hard drives on Judge Zambrano's computer "proves what [Ecuador] has insisted all along: Judge Zambramo wrote the Lago Agrio judgment, and nothing Guerra says can be believed."

As Courthouse News reported:

"… there is absolutely no forensic evidence in respect to Mr. Guerra's or Judge Zambrano's hard drives that offers any hint that Mr. Guerra actually drafted or edited even a single sentence of any of these orders," the unredacted brief states. "Nothing."

Also interesting is that a U.S. federal appellate court is slated to review Chevron's complaints about the Ecuador court process in a hearing on April 20 in Manhattan. Donziger's letter makes clear that Chevron's lawyers have an ethical obligation to disclose this critically important evidence so it can be considered.

As Donziger said in his letter to the Chevron lawyers,

According to court filings in the [arbitration] proceeding recently made public, the Racich Report "directly contradicts" Chevron's allegations of impropriety regarding authorship of the trial court judgment. The affected Ecuadorian communities and those of us in the United States targeted by Chevron's retaliatory litigations have long asserted that your client's claim in this regard is the product of unruthful and flagrantly corrupt witness testimony. It is our position that any probative or exculpatory evidence related to the Chevron bribe allegation must be made public under your continuing duty of candor to courts where these issues have been raised, and in the interests of justice for all involved in this long-running dispute.

We might add that in a meticulously-detailed 222-page decision, Ecuador's Supreme Court in 2013 unanimously affirmed the trial court decision against Chevron after a de novo review of the evidence. The court rejected all of Chevron's trumped-up complaints of fraud. (For a summary of the evidence against Chevron, see here.)

We predict it is just a matter of time before the full Racich report gets released. For Chevron, the impact already is devastating.